[Fsfe-ie] Update on the EU's IP Enforcement Directive

James Heald j.heald at ucl.ac.uk
Wed Feb 25 19:50:48 CET 2004

-- FFII News Update -- 25 February 2004 --
+++ +++ +++ +++ +++ +++ +++ +++ +++ +++ +++ +++ +++ +++
-- For immediate release -- Please redistribute widely

As expected, the proposed text for the Intellectual Property Rights
Enforcement Directive (IPRED) was nodded through by the European
Parliament's Legal Affairs committee without a vote on Monday afternoon.

The Directive is now scheduled to be debated by the full Parliament on
Monday 8 March, and voted on (with amendments possible) on Tuesday 9
March, ready to be approved by ministers on Thursday 11 March.

A report of the MEP's discussion can be found at:
One notable comment is that of Malcolm Harbour (UK Conservative MEP),
who said that:

     	"This Directive, contrary to public presentation, is not mainly
about the commercial interests of the software industry, but about
important brandnames that are an incentive for criminal elements
(tangibles)...  When getting e-mails MEPs should reply that the
Directive is not about Free Software and not even about the digital
world. It should pass in First Reading".

This should be read in the context of Article 2 of the Directive, which
states that:

     	"...the measures and procedures provided for by this Directive
shall apply, in accordance with Article 3, to any infringement of
intellectual property rights as provided for by Community law and/or by
the national law of the Member State concerned".

A page by Ian Brown of the Foundation for Information Policy Research
(FIPR), outlines some of the measures in the directive and how they
could be used by claimed rightsholders against small software projects:

EFF Alert

Electronic Freedom Frontier (EFF) today also issued a briefing about the
directive, and an online petition which will be sent to key MEPs,
	"The European Parliament is poised to adopt a controversial directive
on Intellectual Property Rights Enforcement that would give
rights-holders incredibly powerful tools in their fight against
intellectual property infringers. While this might sound like a good
idea at first, a closer look reveals that the directive doesn't
distinguish between unintentional, non-commercial infringers and
for-profit, criminal counterfeiting organizations. If this directive is
adopted, a person who unwittingly infringes copyright -- even if it has
no effect on the market -- could potentially have her assets seized,
bank accounts frozen and home invaded. Don’t let these tactics become
the latest weapons in intellectual property rights-holders' destructive
war on "piracy".	
	"The key to the directive is the definition of 'commercial scale'.
Several of the more extreme new remedies are only available for
commercial- scale infringement. However, this is largely undermined by
the definition in new recital 13a of the directive, which states, 'The
acts which are committed on a commercial scale are those carried out for
direct or indirect economic or commercial advantage'.

	"Although it goes on to say, 'This would normally exclude acts done by
end consumers acting in good faith,' the meaning of 'indirect economic
advantage' is unclear and the directive is not limited to intentional
infringements. Therefore, there is concern that rights-holders will be
able to use the new tougher penalties against consumers who accidentally
or unknowingly infringe, including those who commit minor infringements
without any commercial purpose or impact."

FFII view
FFII stands by its previous statements about the Directive, as picked up
for example in this Slashdot discussion:
In particular FFII draws attention to the proposal to make "Anton
Piller" orders available for all alleged IP infringements, without even
the proposed restriction to commercial scale.  Currently these measures
are unknown outside the UK and France.  Furthermore, in the UK, after
very strong criticisms from the most senior judges, a strict new code of
practice was brought in in the early 90s which cut the number of
applications granted by a factor of ten.	
	"We are talking about unannounced dawn raids by private security firms,
piling in with legal authority and seizing entire computer systems and
filing cabinets full of documents. That is a terrifying and destructive
experience for a small firm," explains FFII's James Heald.

That is why FFII is arguing that such measures should only be available
in the most extreme circumstances, and where there is clear evidence of
a deliberate knowing intent to infringe for commercial gain on a
commercial scale. Such measures are simply not appropriate where there
is no such deliberate piracy, and no such emergency, in cases as complex
as those in patent law and disputed ownership of confidential
information/trade secrets, which routinely can take five years in court.

	"FFII says that without better defined safeguards the Directive will
lead to a far more agressive, lawyer-driven legal environment for
creative businesses. Having seen how similar legislation is used in the
United States, FFII fears that it will provide the perfect means for
agressive litigators holding dubious intellectual property rights to
"pull a SCO" and use the powers of the Directive to seriously harass and
damage small open-source projects and innovative businesses".

FFII believes that:

1. Disputes about patents and trade secrets/confidential information
should be taken out of the scope of the directive altogether. The
draconian measures being discussed are completely inappropriate for such
complex disputes.

Ideally the directive should be limited back to its original proposed
scope, namely commercially organised, fully intentional, copyright and
trademark infringement.

2. The Directive should only apply where there is intent to infringe for
commercial gain on a commercial scale. It should not apply unless there
is good evidence of recklessness or a deliberate knowing intention to

3. Articles 7 to 10 should even then only apply in exceptional cases. It
should be clearly stated in the Directive (as at the moment it is not)
that they are not intended to become automatic standard procedure in all
IP disputes.

*** FFII urges all European citizens to contact their local constituency
MEPs as soon as possible, to make them aware of the dangers of this
Directive. ***

Contact details for UK MEPs can be found at:

James Heald,
UK co-ordinator, FFII


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